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Second. This tax applies to checks drawn by a bank upon itself for the purpose of paying its own dividends, coupons or interest of other corporations, or for other payments.

Third. Checks drawn by State, county or city officers, in their official capacity, upon public funds deposited in a bank are exempt, if said funds are kept separate from any private accounts, it not being within the intent of the law to tax a public treasury.

I will add, with reference to some other questions frequently proposed to this office, that orders for dividends are subject to the tax if drawn for a definite and certain sum, but not otherwise. An ordinary certificate of deposit used in the ordinary manner is not liable. Interest coupons are considered exempt. Bills of exchange, foreign as well as inland, when drawn upon a bank, banker or trust company, are held to be subject to the tax, whether payable at sight or otherwise. Duplicates of bills, orders, etc., are liable to the same as originals. Receipts, not relating to banking business, for instance, for rents, are exempt.

Very respectfully,

J. W. DOUGLASS, Commissioner.


The Supreme Court of the United States decided, last week, in Vermilyea v. The Adams Express Company, a point of considerable importance to bankers, brokers and others dealing in negotiable securities. The point was in brief: That overdue treasury notes and bonds, which have been stolen from the owner and sold, for value and in the regular course of business, may be recovered by the owner of the purchaser. That case was as follows: In May, 1868, eight treasury notes, issued under the act of March 3, 1865, were delivered to the Adams Express Company to be forwarded for conversion into bonds of the United States. While in transitu these notes were stolen from the express messenger. A notice and caveat giving the number and description of the notes were filed in the Treasury Department and extensively advertised throughout the United States, and were given to Vermilyea & Co. among others. In April, 1869, Vermilyea & Co. purchased these notes over their counter, at fair prices, in the regular course of business, and forwarded them to the Treasury Department for redemption, where they were met by the caveat of the express company. The express company had succeeded to the rights of the owner of the notes. The notes in controversy were issued and dated July 15, 1865, payable to the holder three years after date. On the back of each note was a statement that it was convertible, at the option of the holder, into what are known as fivetwenty bonds of the United States.

On these facts the court held that the notes were negotiable commercial paper, and subject to the commercial law of other paper of that character; that the fact that the holder had an option to convert them into other bonds did not change their character, and that, being overdue when purchased by Vermilyea & Co., the latter took them subject to the rights of antecedent holders, to the same extent as in case of other paper bought after its maturity. The court said: "We cannot agree with the counsel for the appellants, that the simple fact that they were the obligations of the government takes them out of the rule which subjects the purchaser of overdue paper to an inquiry into the circumstances under which it was made as regards the rights of antecedent holders. The goverment pays its obligations according to their terms with far more punc


tuality than the average class of business men. very fact that when one of its notes is due the money can certainly be had for it, if payable in money, should be a warning to the purchaser of such an obligation after its maturity to look to the source from which it comes and to be cautious in paying his money for it. for sale they carried upon their face the fact that the *** When these notes were offered to appellants period for their payment or conversion into bonds had come nine months before; that for that time they had ceased to bear interest; and this would very naturally implies, as to the reason why they had not been paid suggest the inquiry which the law of negotiable paper

or converted into bonds.

"Bankers, brokers and others cannot, as was attempted in this case, establish by proof a usage or custom in dealing in such paper, which, in their own interest, contravenes the established commercial law. If they have been in the habit of disregarding that law, this does not relieve them from the consequences nor establish a different law. Nor sitting here as chancellors can we say that the testimony offered of the impossibility of men in that business bearing in mind the notices of loss or theft of bonds or notes isfies us of the soundness of the proposition. By the well described, with which they have been served, satwell-settled law of the case they may purchase such paper before due without cumbering their minds or their offices with the memoranda of such notices. But we apprehend that the amount of overdue paper presented for negotiation is not so large that bankers receiv ing notice of loss cannot make or keep a book or other form of reference which will enable them with a very little trouble to ascertain when overdue paper is presented whether they have been served with notice of a claim adverse to the party presenting it.

"The fact that the notes were at once recognized at the treasury by reason of the notices served there, proves that no unreasonable amount of care and prudence was necessary to enable bankers and brokers to do the same. There are other rights in cases of overdue paper beside the right to purchase it, which require that care should be exercised, especially by parties who have fair notice of these rights. Bankers and brokers cannot, more than others, when warned of possible or probable danger in their business, shut their eyes and plead a want of knowledge which is willful. In this matter also appellants were in fault."

PENALTY AGAINST NATIONAL BANKS FOR USURY. It was decided by the General Term of the Supreme Court of this State, in Hintermister v. First National Bank of Chittenango, 5 N. Y. Sup. Ct. 484, that an action by an individual against a national bank, located in this State, to recover the forfeiture of twice the amount of interest paid upon a usurious loan, under the provision of section 30 of the National Bankruptcy Act, was not maintainable. Mr. Justice Countryman, who delivered the opinion of the court, said, speaking of First National Bank of Whitehall v. Lamb, 50 N. Y. 95: "It was held, that as the statute authority had made full provision on the subject of the rate of interest and the penalties for its violation, that national banks, where wholly subject to the local law in all their private dealings with third parties within our jurisdiction, it being the intention of congress, in the enactment of the federal statute, to leave all contracts made in States and Territories, where usury laws exist, to be dealt with according to those laws, and at the same time to impose restrictions in respect to the rate of interest in those States and Territories when the internal policy is such as to leave the subject of interest on money free from legislative regulation. Now, our local statute does contain a precisely similar provision to that in question, and allows an action to be brought by the borrower to recover back any excess he has paid upon the contract above the legal rate of interest. 1R. S. 772, § 3. The case cited is therefore for a direct authority against the right to maintain this action, which is brought to recover the penalty given in the federal statute."

This decision would not, of course, hold good, for the reasons given, in Massachusetts where the State usury laws are held not to apply to national banks. Central National Bank v. Pratt, 115 Mass. 539. But, possibly, the same conclusion might be reached, on the ground that a State court will not enforce the penal laws of another jurisdiction.


It is a settled rule of law in all the States, except Illinois, that under ordinary circumstances the holder of a check has no legal claim against the bank on which the check is drawn until the latter has accepted the check, so that a bank may, as a rule, refuse to pay a check drawn upon it without rendering itself legally liable to any one save the drawer of the check. It was, however, said in Bank of the Republic v. Millard, 10 Wall. 152, that "It may be if it could be shown that the bank had charged the check on its books against the drawer and settled with him on that basis, that the plaintiff could recover on the count for money had and received, on the ground that the rule ex æquo et bono would be applicable, as the bank having assented to the order and communicated its assent to the paymaster (the drawer) would be considered as holding the money thus appropriated for the plaintiff's use and therefore under an implied promise to him to pay it undenied." This was, of course, but a suggestion of what might be the rule in a proper case, but in Seventh National Bank v. Cook, 73 Penn. St. 483, the Supreme Court of Pennsylvania cite this suggestion and apply it to the case at bar. In that case a check was drawn payable to Cook. Barnes indorsed Cook's name upon it without his authority and presented it to the bank for payment and received the money on it; and the bank deducted the check from the drawer's account and settled with him on that basis. Cook sued the bank to recover the amount of the check, and the court held that he could recover, on the strength of the suggestion in Millard's case.


On page 125, ante, we gave a note of the decision of the United States Supreme Court, in Hepburn v. Carlisle, holding that shares of stock in national banks may be taxed by the State and for municipal purposes the same as other property of like character, and that they are taxable at their actual value and not necessarily at the par value. We shall shortly give the opinion in that case in full. Meanwhile we are reminded of a recent decision of the Supreme Court of this State on a like point. In People ex rel. Williams v. Assessors of Albany, 5 N. Y. Sup. 155, it was held that bank stock should be assessed at its full and true value, and therefore where assessors assessed stock at its par value, when its actual or market value was in excess of the par value, it was held to be error.

Tappan v. Merchants' National Bank, 19 Wall. 490, is another recent decision on the subject of taxing national banks. It was therein held that shares of stock in national banks are personal property, and that the State within which a national bank is situated has jurisdiction for the purposes of taxation of all the shareholders of the bank, both resident and non-resident, and of all its shares, and may legislate accordingly; that is to say, that a State has the right to tax all the stockholders of national banks in the State, both resident and non-resident, and that it may by law impose the tax both on residents and non-residents at the place where the bank is located.



Condition in bond: penalty.-Bigony gave to Tyson a bond in $1,000, conditioned that Bigony should not "practice medicine within five miles of S., in which place he has this day deeded certain property to said Tyson." Held, that on the face of the bond the sum was a penalty, and not liquidated damages. The intention of the parties gathered extra, the instrument may fix the sum named in it as liquidated damages, and the facts and circumstances so gathered being parol, the question is for the jury. Bigony v. Tyson, p. 157.


Sealed instrument. - Streeper held a bond against Zimmerman; he indorsed on it, "I request my executors to give this bond to Anna for her great kindness she has shown to me and her grandmother," this was signed and sealed; after it was written, "This is not to interfere with what I will to her, this she is to have beside that." Anna was the granddaughter of the obligee and the wife of the obligor. The bond was not delivered to Anna, but remained in the obligor's possession, with his other securities, till his death. that the bond did not pass to Anna. The indorsement indicated a prospective gift; there being no delivery, it was without operation. Zimmerman v. Streeper, p. 147.



Guardian and ward: leased premises.- A guardian leased his ward's house and received $500 for the goodwill in addition to the rent; the lessee, with his consent, assigned the lease to Binder, and, before the expiration of the term, the guardian leased to Binder for an increase of $100 rent per annum, but received nothing for the good-will. Binder, with the assent of the guardian, assigned the lease, and received for the good-will $1,350. Held, that the guardian was not chargeable for the value of the good-will not received by him. The good-will was not to be considered separately from the rental; it being for the purposes of leasing a part of the premises, its value to be considered in fixing the rent. Under the circumstances, the court surcharged the guardian with an increased rent for the premises, the good-will enhancing it. Thackray's Appeal, p. 132.


Conditional promissory note.- A negotiable note on a printed blank was signed after there was written on the margin that it was given for a patent, and not to be paid till a profit specified was made. The condition was cut off, and the note passed to a bona fide indorsee for value, without notice. The consideration failed. Held, in a suit by the holder, that this was no defense by the maker.

The note was to order "for value received without interest, waiving the right of appeal and of all valuation, appraisement, stay and exemption laws." Held, to be negotiable.

The maker must guard the public against frauds and alterations by refusing to sign negotiable paper in such form as to admit of fraudulent practices with ease, and without ready detection. Zimmerman v. Rote. p. 188.

* From advanced sheets of P. F. Smith's forthcoming volume of Pennsylvania reports. 75 Penn. St. (25 P. F. Smith.)


Creditor of individual partner. — A creditor of one partner agreed with him that he should buy firm goods and that they should be a set-off against the price of the goods, and the set-off was made; the other partner knew that the goods were being bought on this condition, but "was not a party to the agreement and did not consent thereto." Held, that the creditor was liable to the firm for the goods. Todd v. Lorah, p. 155.


1. Time for performance of contract.-A seller was to deliver oil," buyer's option at any time from this date to December 31, 1870." Held, that the seller had the whole of December 31st to perform. Petroleum Co. v. Cunningham, p. 138.

2. Husband and wife: refusal of wife to join in deed of land. A purchaser is entitled to have a contract for sale of land specifically executed, so far as the vendor can, and to have an abatement from the purchasemoney for any deficiency in the title, quantity or other matter touching the estate. A husband contracted to sell land, the wife refused to join in the deed; there being no collusion with her husband, held, that the vendee could not compel specific execution by the husband alone, and retain part of the purchase-money as indemnity against the wife's contingent claim for dower.

A purchaser from a husband takes the risk of the wife joining in the deed, or his action against the husband for damages. Specific execution of an agreement to sell land will not be decreed against a vendor, a married man whose wife refuses to join in the deed, unless the vendee be willing to pay the full purchasemoney, and accept the deed without the wife. The purchaser having proposed, in open court, to accept a deed from the vendor alone and pay the purchasemoney, the case was remitted that the court below might make such decree. Burk's Appeal, p. 141.

CLAFLIN v. OSTROM, AND MERRILL v. GREEN. In No. 8, Vol. XI, of the LAW JOURNAL, is an article in which the above-named cases are critically examined and compared, and which concludes with the opinion that they cannot be reconciled-that the Court of Appeals and the Commission of Appeals are directly in conflict in these decisions.

In Claflin v. Ostrom, 54 N. Y. 581, one T. C. Hanford and Charles Ostrom were copartners; on the 13th of March, 1867, they entered into an agreement by which Hanford assigned all his interest in the firm property to Charles Ostrom, in consideration of which Ostrom assumed, and promised Hanford that he would pay, all the debts of the firm therein mentioned, among which was a debt due Claflin, the plaintiff, of about $1,200. At the same time, and on the same paper, Anthony P. Ostrom, the defendant, wrote a guaranty of this promise. Claflin's debt was not paid, and he brought an action against Anthony P. Ostrom on this guaranty, which had been assigned to him by Hanford. These are all the facts in the case material to the decision of the question now under consideration. The Commission of Appeals held that the action could be maintained even without the assignment by Hanford of the guaranty of the defendant.

In Merrill v. Green, 55 N. Y. 270, Roberts and Green were copartners; Roberts sold out his interest in the firm to Green, and Green and one Nichols executed to Roberts a joint and several bond, conditioned for the payment by Green of the debts of the firm of Roberts &

Green, among which was one due Merrill, the plaintiff. This debt was not paid, and Roberts, the obligee named in the bond, assigned said bond to Merrill, on which he brought his action to recover the amount due him by the firm of Roberts & Green. It does not appear that Roberts had been compelled to pay, or had paid, any of the debts of his firm before this assignment. The Court of Appeals held that the action could not be maintained.

It seems to me that a close examination of what was decided by each of these cases will show them to be not so irreconcilable as at first blush they may appear to be. The case of Lawrence v. Fox, and kindred cases cited in the opinion of Commissioner Earle, have established, beyond doubt, the proposition that a promise made by one person to another to pay a third person, will give such third person a right to enforce the promised payment by action against the promisor. This is all that was decided in that case, though the proposition has since been sometimes put more broadly a promise made by one person to another for the benefit of a third, etc.-but the strictest construction of the case is sufficient authority for the decision in Claflin v. Ostrom. In that case there was a promise by Charles Ostrom to pay the debts of the firm, among which was the plaintiff's debt; this clearly gave the plaintiff, Claflin, a cause of action against Charles Ostrom to enforce performance of the promise to pay him; but this promise to pay Claflin was guaranteed by the defendant, Anthony P. Ostrom; and it is a general rule of law that the liability of the guarantor, unless specially limited by him, is co-extensive with that of the principal debtor. Union Bank v. Coster, 3 N. Y. 203; Theobald on Prin. and Surety, 46. This, then, fixes the liability of Anthony P. Ostrom, the guarantor, to pay the amount mentioned in the promise of Charles Ostrom, which he guaranteed; and there is abundant authority for the proposition of Earl, C., that the guaranty goes with the principal obligation, and is enforceable by whomsoever can enforce that. Cooper v. Dederick, 22 Barb. 516; McLaren v. Watson, 26 Wend. 425; Jackson v. Blodget, 5 Cow. 202. In Merrill v. Green, it will be noticed that the action was not brought on a promise made to pay the debt of the plaintiff; the defendant Nichols, in that case, never executed a guaranty of any such promise. The action was on the bond of Green & Nichols to Roberts, conditioned for the payment, by Green, of the debts of the firm of Roberts & Green; the plaintiff was the assignee of the bond. To recover in an action on this bond, Roberts, the obligee, would have to show a breach of the condition and damages; that is, that Green had not paid the debts of the firm of Roberts & Green, and that he, Roberts, had been called on or compelled to pay the same in consequence of Green's failure to do so; he could then recover the amount he had paid of such debts; and after such breach and damages therefrom sustained by Roberts, any assignee from Roberts could likewise have maintained such an action on proof of such damages sustained, not by the plaintiff, but by Roberts, the obligee in the bond.

These principles are so simple and so well established that they can hardly be questioned; and, certainly, it cannot be claimed that any one can acquire, by assignment from the obligee, in a bond any greater rights thau he has himself, or that the rights of the plaintiff, in an action on a bond, are any greater without an assignment of the bond than with such assignment. If Roberts had paid the debt of his firm to Merrill, and

then assigned to him the bond, no doubt Merrill could have maintained an action against the obligors on an allegation and proof of breach of the condition and damages sustained by Roberts because of such breach; such damages would, of course, be the amount paid by Roberts to extinguish the debt of his firm to Merrill, and though the proof would be nearly the same as in the action brought by the plaintiff in the case under consideration, the principle governing his right to recover would be very different from that on which he based his action.

If these views are sound, the two cases are thus reconciled, and there is no conflict on the subject between the Court and the Commission of Appeals.




Liability of English shareholder in a foreign company: effect of taking shares: agreement to submit to jurisdiction: service of notice at elected domicile.-To an action on a French judgment, the defendant pleaded that he was not at any time before judgment resident or domiciled in France, or within the jurisdiction of the court, or subject to French law; that he was never served with any process, nor had any notice or opportunity of defending himself. Replications. (1.) That the defendant was holder of shares in a French company, having its legal domicile in Paris, and became thereby subject, by the law of France, to all the liabilities, etc., belonging to holders of shares, and, in particular, to the conditions contained in the statutes or articles of association; that by these statutes it was provided and agreed that all disputes arising during liquidation between shareholders should be submitted to the jurisdiction of the French court; that every shareholder provoking a contest must elect a domicile, and, in default, election might be made for him at the office of the imperial procurator of the civil tribunal of the department in which the office of the company was situated; and that all summonses, etc., should be validly served at the domicile formally or impliedly chosen; that the company became bankrupt, and defendant's unpaid calls became payable to the plaintiff as assignee; that he made default and provoked a contest; that he never elected a domicile, and thereupon the plaintiff caused summonses, etc., to be served at the office aforesaid; that by the law of France that office was the defendant's implied domicile of election for the purpose of service, and the service was regular; and that the defendant was bound to appear, but did not, whereupon judgment by default was recovered against him. (2.) A similar replication, alleging that defendant was a shareholder as in the first replication mentioned, and stating provisions of the law of France to the same effect as those contained in the above-mentioned statutory articles of association, but omitting all reference to the statutes or articles of association, and alleging that defendant did not elect a domicile, and also that the company became bankrupt, etc., and that a summons was served as in the first replication stated. On demurrer, held, that the first replication was good, and (by Amphlett and Pigott, BB., Kelly, C. B., dissenting) that the second replication was bad. Copin v. Adamson; Copin v. Strachan, Law Rep., 9 Ex.



Notice to quit: tenant permitted to continue in possession (without express stipulation) after the expiration of

his landlord's lease.- Premises were let by the owner in fee on a lease expiring at midsummer, 1866. The lessee underlet to the defendant on a lease from year to year commencing at Michaelmas. The defendant was in possession at midsummer, 1866 (when the lease of his immediate lessor came to an end), and the owner in fee granted a new lease to the plaintiff as from that time. The defendant, who continued to occupy the premises, paid the plaintiff a sum equal to a quarter's rent, on the terms on which he had held the premises, as from midsummer to Michaelmas, 1866, at which time the plaintiff insisted upon an increase of 51. per annum on the rent, and such increased rent was thenceforth paid by the defendant. In December, 1873, the plaintiff gave the defendant a six months' notice to quit at midsummer. Held, by Brett and Denman, JJ. (the latter with some doubt), that the notice was bad, the defendant having been allowed to hold over the expiration of the lease originally granted to him, without any explanation or fresh stipulation (save as to the increased rent); the inference being that there was a tacit agreement between him and the plaintiff that he should continue to hold as tenant from year to year according to his original holding, that is, as from Michaelmas to Michaelmas. Kelly v. Patterson, Law Rep., 9 C. P. 681.


1. Initialing slip subject to ratification: policy: concealment of facts material to risk.- Where underwriters have, by initialing a slip, made a contract of assurance, which, although invalid at law and equity for want of statutory requisites, is, nevertheless, in practice, and according to the usage of those engaged in marine insurance, a complete and final contract binding upon them in honor and good faith, whatever events may subsequently happen, the assured need not communicate to the underwriters facts which afterward come to his knowledge material to the risk insured against; and the non-disclosures of such facts will not vitiate the policy of insurance afterward executed. And it makes no difference that, the insurance being negotiated by an agent of the assured, the slip was initialed subject to the ratification of the assured. So held, on the latter point, on the authority of Hagadorn v. Oliverson, 2 M. & S. 485. Cory v. Patton, Law Rep., 9 Q. B. 577.

2. Time policy: implied warranty of seaworthiness: the merchant shipping act, 1854 (17 & 18 Vict. c. 104), 8. 118: certificate that ship is fit to carry passengers: illegal act of master: privity and liability of owner.If a master of a vessel which has not obtained a certificate enabling her to carry passengers, does carry them without her owner's knowledge, her voyage is not rendered, by $ 318 of the merchant shipping act, 1854, illegal, so as to vitiate a policy effected by her innocent owner. Cunard v. Hyde, 2 E. & E. 1; Wilson v. Rankin, Law Rep., 1 Q. B. 162, followed. If a vessel sails on a voyage in an unseaworthy state, and she is lost by reason of her unseaworthiness during a storm, the perils of the sea must be considered the proximate cause of the loss. In an action upon a time policy, if it be proved that the vessel insured had been sent to sea in an unseaworthy state, her owner not knowing that she was unseaworthy, and was lost by the perils insured against, owing to her unseaworthiness, the owner can recover for her loss. Thompson v. Hopper, 6 E. & B. 172, 937; Fawcus v. Sarsfield, id. 192, followed and commented on. Dudgeon v. Pembroke, Law Rep., 9 Q. B. 581.


long since pardoned the only offense of which the claimant was guilty, and this gave him the assurance that he should stand in the courts of his country in as good plight and condition as any citizen who had never sinned against its authority."



Liability of stockholder: exceptions.-This action was brought to charge defendant, as a stockholder in a corporation, for machinery, etc., sold to it by plaintiffs, after the recovery of a judgment therefor and the return of an execution issued thereon unsatisfied. It was claimed that the company was gotten up by defendant and one H., and the property of H., not worth over about $30,000, was put in at $100,000, and the whole stock of the company issued to H.; that the capital stock had not been paid according to the terms of the act in reference to manufacturing corporations, that the certificate, filed by the company, was defective in not stating that the property turned in was of the value for which the full

The United States Supreme Court, in Sprott v. United States, held that a purchaser of cotton from the Confederate States, who knew that the money he paid for it went to sustain the rebellion, cannot, in the Court of Claims, recover the proceeds, when it has been captured and sold, under the captured and abandoned property act. The cotton was sold to the claimant, by an agent of the Confederate government, for the purpose of raising funds to purchase munitions of war, and the cotton was understood by the claimant to be the property of the Confederate government. The claimant was a resident of Clairborne county, Mississippi, in March, 1865, the date of the purchase, and the cotton was captured in May, 1865, by the Federal forces, and afterward sold by the government. Miller, J., who delivered the opinion, said: "The claimant now asserts a right to this money on the ground that he was the owner of the cotton when it was captured. This claim of right or ownership he must prove in the Court of Claims. He attempts to do so by showing that he purchased it of the Confederate government and paid them for it in money. In doing this he gave aid and assistance to the rebellion in the most efficient manner he possibly could. ** A clearer case of turpitude in the consideration of a contract can hardly purchase property necessary for their business, and to


be imagined, unless treason be taken out of the catalogue of crimes. The case is not relieved of its harsh features by the finding of the court, that the claimant did not intend to aid the rebellion, but only to make money. It might as well be said that the man who would sell for a sum far beyond its value to a lunatic, a weapon with which he knew the latter would kill himself, only intended to make money and did not intend to aid the lunatic in his fatal purpose. This court, in Hanaver v. Doane, 12 Wall. 342, speaking of one who set up the same defense, says: 'He voluntarily aids treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his acts are too serious to admit of such a plea. He must be taken to intend the consequences of his voluntary acts.' This case, and the succeeding one of Hanaver v. Woodruff, 15 Wall. 349, are directly in point in support of our view of the case before us."

Field, J., delivered an elaborate opinion dissenting from the view of the majority of the court, and maintaining that the claimant had the benefit of the proclamation of pardon and amnesty made by the president in December, 1868. He said: "That pardon and amnesty did not, of course, and could not change the actual fact of previous disloyalty, if it existed, but as was said in Carlisle v. United States, 16 Wall. 151, they forever close the eyes of the court to the perception of that fact as an element in its judgment, no rights of third parties having intervened. In legal contemplation the executive pardon not merely releases an offender from the punishment prescribed for his offense, but it obliterates the offense itself. *** And I submit respectfully that the eloquent denunciation of the wickedness of the rebellion contained in the opinion of the majority, is no legal answer to the demand of the claimant for the proceeds of his property seized and sold by our government, when that government

paid capital stock was issued, and that, in fact, it was so far below that value as to be a fraud. Held, that under the provisions of chap. 333, Laws of 1853 (amending chap. 40, Laws of 1848), authorizing the trustees of a corporation, organized under said act, to

issue stock to the amount of the value thereof in payment, and releasing the holder of such stock from the liability to the creditors of the corporation, imposed by the original act (§ 10) upon the holders of stock not full paid, a mere mistake or error of judgment by the trustees, either as to the necessity of the purchase or as to the value of the property so purchased, if made in good faith and not to evade the provisions of the original act, will not subject a holder of stock issued to pay for the property purchased to such liability. Under the provision, the trustees have a discretion and are to be the judges as to the necessity of the property and its value; good faith and the exercise of a proper discretion and honest judgment is all that is required. Schenck v. Andrews, 46 N. Y. 589, and Boynton v. Hatch, 47 id. 225, limited and distinguished.

Where all the instructions of a judge, in his charge to the jury as to the questions submitted, are erroneous, a general exception is sufficient, although other propositions may have been correctly stated. Questions not submitted to the jury cannot be made the subject of an exception. Schenck et al. v. Andrews. Opinions by Lott, Ch. C., and Reynolds, C.


Damage from ice: mooring.-This action was brought upon a policy of insurance issued by defendant upon plaintiff's canal boat for one year. The perils insured against were of the "inland lakes, rivers, canals and fires." Among the perils excepted was damage from ice. The boat was moored at the close of navigation in the canal basin at Oswego, and frozen in. When the ice broke up in the river in the spring it jammed and formed a partial dam, which set back the water so that it flowed over a sea-wall separating the river from the basin; and in consequence the stern of the plaintiff's boat was loosened while the bow remained fast in the ice, and the boat was twisted and injured. Held, that the exemption from liability for injuries occasioned by ice was not limited to the season of navi

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